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Norway: Proposed Criminal Law Amendment to Include Internet in Public Space, Public Act Definition

(Oct. 19, 2012) On September 12, 2012, <?Norway's Ministry of Justice published for public comment a proposal recommending that the country's Criminal Code be changed to reflect a new definition of public space and of public action to include the Internet, so that persons who publish hate speech, regardless of the medium, can be more strictly punished. (Julie Ryland, Wants Ban on Online Statements of Hate, THE NORWAY POST(Sept. 14, 2012); Ønsker å straffe hatytringer pånettet [Want to Punish Hate Speech on the Web], Norwegian Labor Party website (Sept. 13, 2012).)

The impetus for the proposal appears to be a ruling issued in August by the Norwegian Supreme Court, which determined that the Internet is not a public space, upholding an appeals court decision that had ordered the release of a blogger who had allegedly made threats against the police on his blog. Thus hate speech published in a newspaper would at present be handled differently under the law than similar statements that appear on Facebook or in a blog. (Id.; Wendy Zeldin, Norway: Making Public Threats on a Blog Will Be Criminalized, GLOBAL LEGAL MONITOR (Aug. 13, 2012).)

The current definition of public space and public action for the purposes of criminal law is found in section 7 of the Norwegian Penal Code of 1902. It states:

1. In this code public place means any place intended for public use or frequented by the public.

2. An act is considered to be committed in public when it is committed by publication of printed matter or in the presence of a large number of persons or under such circumstances that it could easily have been observed from a public place and is observed by any person present there or close to it. (The General Civil Penal Code (Act No. 10 of May 22, 1902, as last amended by Act No. 131,Dec. 21, 2005),University of Oslo Law Library Translated Norwegian Legislation online database; Almindelig borgerlig Straffelov (Straffeloven) [General Civil Penal Code (Penal Code)] (last amended June 22, 2012), LOVDATA online legal database.)

It may be noted that unlike the 1902 Code, Norway’s new Penal Code of 2005, which is only partially in effect, in its definition of public space and public action under section 10 (not yet in force), does not refer to “the publication ofprinted matter” (Udgivelse af trykt Skrift)in defining a public act. Instead, it includes as part of the definition of a public act the”issuance of a message” (fremsettelse av et budskap). It does not mention the Internet, however. (Lov om straff (straffeloven) [Law on Punishment (Penal Code)] (May 20, 2005; enforcement date determined by the King),§ 10 (as amended by Law No. 74 of June 19, 2009), LOVDATA.)

A consultation document on the proposal to broaden section 7’s definition of public space and public action has been released, and the deadline for submission of comments is October 26, 2012. (Høring– Forslag til endring av definisjonen av når en handling er begått «offentlig» i straffeloven 1902 – ytringer mv. fremsatt på internett [Consultation – Proposal to change the definition of when an act is committed “in public” in the Penal Code 1902 – statements, etc., made on the Internet] (Sept. 12, 2012).)

Punishment of Hate Speech Under the Norwegian Penal Codes

Section 135a of the amended 1902 Penal Code provides a punishment of a fine or imprisonment for up to three years for those who “wilfully or through gross negligence publicly [utter] a discriminatory or hateful expression.” Those who aid and abet the commission of such an act will be liable to the same penalty. (The General Civil Penal Code, § 135a, supra.) Section 135a defines “a discriminatory or hateful expression” as “threatening or insulting anyone, or inciting hatred or persecution of or contempt for anyone because of his or her a) skin colour or national or ethnic origin, b) religion or life stance, or c) homosexuality, lifestyle or orientation.” (Id.)

Norway’s new Penal Code of 2005 covers the same crime in section 185 on “hate speech” (Hatefulle ytringer). It includes threatening, insulting, etc., a person because of a disability as a fourth type of discriminatory or hateful expression. (Lov om straff (straffeloven), § 185, supra.)

Labor Party memberPål Lønseth reportedly attributes the delay in the 2005 Code’s full enforcement”to the fact that present computer systems in the police districts are not able to handle both the old criminal code and the new one in a transition period.” (Ryland, supra.)